Rival Restaurants Avoid Chicken Fight, Settle IP Case

The chicken wars are over.

On one side was Greenwich-based Garden Cartering, which had filed an intellectual property lawsuit against a former employee who opened a new restaurant that had menu items similar to those of Garden Catering. On the other side was Wally’s Chicken Coop in Storrs, whose owners denied doing anything improper in naming and cooking their sandwiches and combo platters.

But just five days before an early July trial was set to begin in federal court in New Haven, the two sides settled. An attorney associated with the case said that no money changed hands and Wally’s did not agree to any changes to or restrictions on its food or its business. Although the matter might sound frivolous to those outside the restaurant industry, lawyers have said that food preparation and menu disputes are an emerging area of IP law.

The dispute began in 2011, when Frank Carpenteri, the owner of the Greenwich restaurant, sued Michael Natale and his brother, who opened up the Storrs eatery.

Carpenteri claimed he was the owner of common-law trademarks, including the term “Hotsy,” to describe sandwich types and chili, and “The Special,” which is a combo meal of chicken nuggets, a side dish and soda. He claimed that Wally’s used names that were identical or similar to his trademarks. He specifically objected to Wally’s using the term “Topsy,” which he said is similar to Garden Catering’s “Hotsy.”

The plaintiff had claimed that Michael Natale had worked for Garden Catering for many years and was aware of Garden Catering’s recipes, pricing and supplier arrangements. Further, he knew how the chicken nuggets were prepared. The suit also claimed that when Natale was employed by Garden Catering, he took steps to undermine its business. He left in August 2011 and shortly later opened the Storrs’ establishment.

In his suit, Carpenteri claimed he is the owner of intellectual property used at the restaurants, including copyrights, common-law trademarks, U.S. trademark applications and registrations, and state trademark applications.

CUTPA Counterclaim

James Doyle, who lives in Rhode Island but is also licensed to practice in Connecticut, represented Wally’s. He acknowledged that the restaurant served the same type of food as Garden Catering: fried chicken and fries. He said that hundreds of other delis do the same. Doyle has said that Carpenteri never formally patented or trademarked any of his items, and could have protected his recipes and menu names by doing so. Doyle had said that the defendants and plaintiff are childhood friends and he thinks the lawsuit is personal.

Doyle’s clients filed a counterclaim, charging that the Greenwich restaurant’s lawsuit amounted to a violation of the Connecticut Unfair Trade Practices Act.

Doyle said that Carpenteri, on June 26, voluntarily dismissed the claims that remained in their case and promised never to sue Wally’s again over the allegations presented in the lawsuit. “Importantly, Wally’s did not pay Garden Catering even a single penny in the settlement,” Doyle said.

The plaintiff’s lawyer, Jim Reilly, of Whitman Breed Abbott & Morgan in Greenwich, said the settlement was far from a defeat for his client.

“The court dismissed the defendants’ counterclaim at an early stage of the case,” Reilly said. “By contrast, four of the five counts of the plaintiffs’ complaint survived summary judgment, and the defendants’ attempts to preclude or limit plaintiffs’ damage claims via a motion in limine were squarely rejected. Thus, plaintiffs were prepared to go to trial with virtually all of their damage claims intact. They ultimately agreed to settle in order to avoid the time and expense associated with trial and enable them to focus on their business.”

The lawsuit barred the individuals on both sides of the lawsuit from making comments to the Greenwich media. However, in a June 27 Facebook post, Mike and Jeff Natale wrote that the case is over and they did not have to pay any money to Garden Catering.

“In the end, it was a nuisance and sometimes a hassle, and Wally’s incurred some legal fees,” the posting said. “It cost Wally’s a little cash, but that was the only impact. There has been no disruption of Wally’s business, Wally’s emerges from the lawsuit without any restrictions, without any changes to its menu, its food or its operations. There are no restrictions on Wally’s ability to expand into other parts of Connecticut and beyond!”

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